DEFENCES

You should never plead guilty, because the consequences of having a criminal record can be devastating, and you never know what defence you might have.

At minimum, you should always seek legal advice from an experienced criminal defence lawyer, before doing anything rash.

There is a difference between “moral guilt” and “legal guilt.”
Although you may have actually committed the offence for which you are accused, legally, it may not meet the threshold requirement to qualify as a “crime.”
In order for an offence to be a crime, it must be proven.

Anyone can accuse anyone of doing anything.  Proving it is a different story!
You do not have to prove that you did not commit the offence; the accusers must prove that you did!

Often, the evidence is insufficient to prove an offence.
The burden of proof is on the Crown to prove each and every element of each and every offence.

Moreover, the burden on the Crown is to prove it “beyond a reasonable doubt.”
That is a very high threshold that often cannot be established.

Therefore, do yourself a favour – as “guilty” as you may believe you are, contact an experienced criminal defence lawyer for a legal opinion first.

My consultation to you is free, so you have nothing to lose by calling or emailing me to discuss your case.

Below, are some possible defences, among countless others, which may afford a defence to your particular charges.

Outlined below are some legal defences pertaining to:

• The Canadian Charter of Rights and Freedoms,
• Elements of an Offence,
• The Criminal Code, and
• The Common Law (case law).

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The first thing to keep in mind is that our Charter protects us from any abuses of power by the government.

Any breaches of your rights and freedoms may result in the charges against you being dismissed.

Moreover, any law that contravenes the Charter is illegal, and therefore of no force or effect.

In order for any charges against you to stick, the police must have conducted their investigation appropriately, and must not have violated any of your rights and freedoms.

Any of the following rights and freedoms may afford a defence to your criminal charges.

s.1        Rights and Freedoms in Canada

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

1. 2 Fundamental Freedoms

Everyone has the following fundamental freedoms:

• Freedom of conscience and religion;
• Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• Freedom of peaceful assembly; and
• Freedom of association.

s.6       Mobility Rights

• Every citizen of Canada has the right to enter, remain in and leave Canada.
• Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a)  to move to and take up residence in any province; and

(b)  to pursue the gaining of a livelihood in any province.

• The rights specified in subsection (2) are subject to
  • any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
  • any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

s.7       Legal Rights

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s.8       Search and Seizure

Everyone has the right to be secure against unreasonable search or seizure.

s.9       Detention or Imprisonment

Everyone has the right not to be arbitrarily detained or imprisoned.

s.10     Arrest or Detention

Everyone has the right on arrest or detention

• to be informed promptly of the reasons therefor;
• to retain and instruct counsel without delay and to be informed of that right; and
• to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

s.11     Proceedings in Criminal and Penal Matters

Any person charged with an offence has the right

• to be informed without unreasonable delay of the specific offence;
• to be tried within a reasonable time;
• not to be compelled to be a witness in proceedings against that person (yourself) in respect of the offence;
• to be presumed innocent until proven guilty, according to law, in a fair and public hearing, by an independent and impartial tribunal;
• not to be denied reasonable bail without just cause;
• except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury, where the maximum punishment for offence is imprisonment for five years or more;
• not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law, or was criminal according to the general principles of law recognized by the community of nations;
• if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
• if found guilty of the offence and if punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

s.12     Treatment and Punishment

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

s.13     Self-Crimination

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

s.14     Interpreter

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter.

s.15     Equality Rights

• Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law, without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
• Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

s.24     Enforcement

• Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
• Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded, if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

s.26     Other Rights or Freedoms

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada (including an Aboriginal rights).

s.32     Application of the Charter

• This Charter applies
  • to the Parliament and government of Canada in respect of all matters within the authority of Parliament, including all maters relating to the Territories; and
  • To the Legislature and government of each province in respect of all matters within the authority of the Legislature of each province.
• Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

s.33     Notwithstanding Clause

• Parliament or the Legislature of a province may expressly declare in an Act of Parliament or of the Legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2, or sections 7 to 15, of this Charter.
• An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have operation as it would have but for the provision of this Charter referred to in the declaration.
• A declaration made under subsection (1) shall cease to have effect five years after it comes into force, or on such earlier date as may be specified in the declaration.
• Parliament or the Legislature of a province may re-enact a declaration made under subsection (1).
• Subsection (3) applies in respect of a re-enactment made under subsection (4).

s.52     Supremacy of the Constitution of Canada

• This Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
• The Constitution of Canada includes
  • The Canada Act 1982, including this Act;
  • The Acts and orders referred to in the schedule; and
  • Any amendment to any Act or order referred to in paragraph (a) or (b).
• Amendments to the Constitution of Canada shall be made only in accordance with authority contained in the Constitution of Canada.

ELEMENTS OF AN OFFENCE

The Crown must prove, beyond a reasonable doubt, each and every element of each and every charge.  The following are some of the standard required elements of any charge.

Date of the offence

• Q: Can the Crown prove that the offence was committed on the date alleged?

Jurisdiction

• Q: Can the Crown prove that the offence occurred where it is alleged to have occurred?
• Q: Did the offence occur within the jurisdiction of the court?

Identity

• Q: Who committed the offence?
• Q: Did the accused aid or abet in any way?

Actus reus

• Q: Did the accused do or omit to do anything to cause the offence?
• Q: Was the act committed voluntarily?

Mens rea

• Q: Did the accused intend to commit the offence?
• Q: Is it an offence of specific or general intent?
• Q: Is the offence one of strict liability?
• Q: Was the accused negligent or reckless in his/her actions?
• Q: Was the offence planned and deliberate?
• Q: Was it an accident? Was it unintentional? Was it a reflex reaction?
• Q: Was the accused compelled to commit the act? No choice?

In addition, each offence will have additional specific elements to prove.

Definitions matter!

SOME EXAMPLES

Assaults (including sexual assault):

• Q: Was the use of force “non-consensual?”
• Q: If bodily harm is alleged, was it more than “transient or trifling” in nature?”

Dangerous Driving:

• Q: Having regard to “all of the circumstances,” was the driving dangerous to the public? Speed alone in insufficient.

Drugs:

• Q: Is the substance in question in fact a “controlled substance” under the CDSA?
• Q: Was the accused in fact in “possession?”
• Q: Was the drug possessed for the purpose of trafficking or for personal use?

Fail to Comply with a Court Order:

• Q: Was the accused required to comply with an order?  Was it a valid order?

Fail to Comply with a Demand:

• Q: Did the accused refuse, or was s/he unable to comply? Does the accused have a reasonable excuse?

Firearms:

• Q: Does the weapon in question meet the legal test of a “firearm?”

Impaired Driving / Over .08%:

• Q: Was the accused’s “operating a conveyance while his/her ability to operate was impaired by alcohol or drug” Indicia of impairment?  Driving pattern? Etc.
• Q: Was the accused in fact over the legal limit? How do you know?  Was it an “approved screening device?” Is the paperwork in order?  Was the machine functioning properly? Etc.

Prohibited/Restricted Weapons:

• Q: Is the weapon in question actually “prohibited” or “restricted?”

Thefts:

• Q: Proof of ownership – Who is the legal owner?  Did the accused have “colour of right?”

ETC.

Each and every offence must be carefully analyzed, in order to ensure that each and every legal requirement for each and every element can be established beyond a reasonable doubt.

CRIMINAL CODE DEFENCES

s.16     Defence of Mental Disorder

No person is criminal responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

s.17     Compulsion by Threats

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.

However, this section does not apply to any offence involving violence.

s.27     Use of Force to Prevent Commission of Offence

Everyone is justified in using as much force as is reasonably necessary to prevent the commission of an offence that would likely cause immediate and serious injury to the person or property fo anyone.

s.30     Preventing Breach of Peace

Everyone who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary, or than is reasonably proportionate to the danger.

s.34     Self-Defence or Defence of Other Person

A person is not guilty of an offence if they believe on reasonable grounds that force, or threat of force, is being used against them or another person, and the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and the act committed is reasonable in the circumstances.

s.35     Defence of Property

A person is not guilty of an offence if they either believe on reasonable grounds that they are in peaceable possession of property, or they are assisting a person whom they believe is in peaceable possession of property, and they believe that another person is about to enter, is entering, or has entered the property unlawfully, and is about to take the property, is doing so, or has just done so, or is about to damage or destroy the property, and the act that constitutes the offence is committed for the purpose of preventing the other person from committing or continuing to commit the offence in question, and the act committed is reasonable in the circumstances.

s.43     Correction of Child By Force

Every school teacher, parent, or person standing in the place of a parent, is justified in using force by way of correction toward the child, if the force does not exceed what is reasonable in the circumstances (in accordance with the standards of the contemporary Canadian community).

COMMON LAW DEFENCES

In addition to the plethora of laws, which may afford a defence to an offence, there are also countless court decisions, which also apply – far too many to deal with here.

Every offence is governed not only by the specific wording of the applicable law, but also by how that law has been interpreted by the courts.

Our courts regularly interpret and apply laws to particular circumstances, thereby establishing precedents or tests for other courts to apply or follow.

Higher court decisions are legally binding on lower courts, and all courts must follow decisions from the Supreme Court of Canada.  Example: If the Supreme Court finds that a particular law is unconstitutional, then that law no longer applies.  The government who passed that law will need to revise it, in order to ensure compliance with the Constitution (our supreme law).

In other words, even laws are subject to the decisions of our Supreme Court.

A good lawyer will keep up to date with the current status of the law, including the most recent court decisions interpreting the application of those laws.

Examples of some Common Law Defences:

• Age and honest but mistaken belief
• Alibi
• Artistic merit
• Colour of right
• Compulsion by threats
• Consent
• Due Diligence
• Duress
• Educational, Scientific or Medical purpose
• Entrapment
• Good faith
• Intoxication
• Lawful excuse
• Mistake of Fact
• Necessity
• Obedience to authority
• Officially induced error
• Reasonable force
• Truth

In addition, there are also numerous procedural requirements, which must be followed carefully in every case.

This applies to statements and confessions, as well as to the execution and service of legal documents, search warrants, etc…

Contact me anytime for a free consultation about your case and what defence might be available to you in your particular circumstances.